In Re Falk

California Supreme Court May 25, 1966 No. Crim. 9742Published

Before: Peters, Traynor, McComb, Tobriner, Peek, Mosk, Burke

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Holding. The court held that while a prisoner is entitled to the benefit of ameliorating sentencing statutes enacted after his offense, the trial court had already consciously exercised its discretion to impose a consecutive sentence.

Issues

Whether the petitioner is entitled to the benefit of the 1963 amendments to Penal Code section 4530 regarding sentencing and parole.
Whether the trial court failed to exercise its discretion to impose a concurrent or consecutive sentence under the amended statute.

Disposition. denied

Quotations verified verbatim against the opinion

“There can be no doubt that he is correct in contending that he is entitled to the ameliorating provisions of the amended statute.”

“the record demonstrates that the court was aware of the fact that it had discretion to make the escape sentence either concurrent or consecutive and consciously exercised that discretion”

PETERS, J.

-Petitioner claims that he is being held in confinement in violation of the rules laid down by this court in

In re Estrada,

63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], and in

In re Daup,

63 Cal.2d 754 [48 Cal.Rptr. 181, 408 P.2d 957]. The petition should be denied.

The facts are not in dispute. Petitioner, after a plea of guilty to armed robbery, was sentenced to the state prison in 1962. On August 11, 1963, he escaped, without force or violence. He pleaded guilty to the escape and was sentenced to prison for the term prescribed by law, such sentence to run consecutively with any prior sentence.

At the time of escape, Penal Code section 4530 provided for imprisonment for at least one year, with the term to start from the time the prisoner otherwise would be discharged. Penal

[685]

Code section 3044 then provided that a person convicted of escape could not be paroled until he had served at least two years after his return to prison following such conviction. Effective in September 1963, section 4530 was amended to reduce the penalty to a term of not less than six months or more than five years where the escape (as here) was without force or violence. (Pen. Code, § 4530, subd. (b).) Parole eligibility was also mitigated.

Petitioner appealed from the escape judgment. The gist of his appeal was that “the term of imprisonment should be based on Section 4530 as amended and not as it existed when he escaped.” The appellate court affirmed because the judgment “merely sentenced . . . [petitioner] for the term prescribed by law, without reference to the specific limits of time provided in Section 4530 before or after the 1963 amendment.”

(People

Falk,

nonpublished opinion, District Court of Appeal, 4 Crim. 2104, October 19, 1965; petition for rehearing denied November 9, 1965; no petition for hearing filed in this court; remittitur issued December 20, 1965.)

In Re Falk

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PETERS, J.

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